Wet gravel decision

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The Federal Constitutional Court's decision on wet pebbles (decision of the First Senate of July 15, 1981 - 1 BvL 77/78) is an important decision in the area of state liability law . The Federal Constitutional Court makes it clear here that a distinction must be made between expropriation , content and restrictions on property and interventions equivalent to expropriation .

Prior handling

Before the decision, the Federal Court of Justice granted owners who were affected by unlawful sovereign action a claim for compensation on the basis of Art. 14 GG, regardless of whether they had previously defended themselves against the sovereign action or not. This practice has been known as “ tolerating and liquidating ”. In simple terms, one can say that as soon as a citizen was impaired in any way in his property, he could claim compensation before a civil court. As the BVerfG found, this practice did not correspond to the differentiations of the constitutional legislature between lawful expropriation, lawful legal barriers to property and illegal encroachments on property.

The BVerfG makes it clear that there is only compensation for expropriations insofar as they are provided for in the Expropriation Act ( Junktim clause ). If the Expropriation Act does not provide for compensation, it is unconstitutional and expropriation is therefore not permitted. If there is a legal restriction on the use of property (content and limitation), there is basically no compensation for the resulting impairment of property.

Other interventions in property can only justify claims for compensation if the citizen has previously done everything in the way of primary legal protection to avert a violation of his or her subjective public rights . Furthermore, Art. 14 GG is not the correct basis for claims (compare special victim theory of the BGH).

facts

The plaintiff operated a gravel dredging operation on his property, which is wholly owned. On two adjacent properties that he had leased, he mined sand and gravel down to the groundwater area. These adjacent parcels were water protection areas according to the Water Resources Act , as the city of R. operated a waterworks here.

In February 1965, the plaintiff applied for permission under the Water Management Act to continue mining gravel. In October 1973, the authorities rejected this application on the grounds that the distance between the extraction sites and the wells of the waterworks was sometimes only 120 m; Impurities in the quarry pond could therefore reach the well and endanger the public water supply. The plaintiff's objection was unsuccessful. He did not bring an action for the grant of the requested permit.

The plaintiff's application for compensation was also rejected. Thereupon he brought an action against the state of North Rhine-Westphalia for payment of an appropriate amount of compensation that was at the discretion of the court. He asserted that the refusal to grant permission for wet gravel extraction constituted an expropriating intervention in his established and exercised commercial operations as well as in the property. He had previously had any claims for compensation of the property owner, his lessor, assigned to him.

The regional court upheld the complaint, after the revision of the state the legal dispute came to the Federal Court of Justice , which submitted the procedure to the Federal Constitutional Court to clarify the question whether "§ 1a para. 3, § 2 para. 1 and § 6 of the Water Management Act in the Version of the announcement of October 16, 1976 ( Federal Law Gazette I p. 3017) are compatible with Article 14, Paragraph 1, Sentence 2 of the Basic Law insofar as they regulate the content of real estate in relation to the groundwater ”.

Clarification of the question referred by the BVerfG

The members of the Federal Constitutional Court have for a long time criticized the practice of the Federal Court of Justice, legal expropriations according to Art. 14 III GG, unlawful measures equivalent to expropriation as well as property impairment through content and restrictions of property according to Art. 14 I 2 GG the same legal consequence (compensation) follow if there is only a certain intensity of the stressful intervention.

In order to be able to comment on this practice of the Federal Court of Justice in a legally binding manner, the Senate therefore reformulated the question referred to the effect that “Section 1a (3) No. 1, Section 2 (1), Section 3 (1) No. 6, Section 6 and Section 17 of the Water Resources Act is incompatible with Article 14, Paragraph 3, Clause 2 of the Basic Law as it allows the refusal of a water law permit or a permit for the discharge of groundwater without compensation ”.

Decision of the BVerfG

In the following (C. II.) The Federal Constitutional Court first clarifies that the Basic Law differentiates between three forms of property impairment in Art. 14 GG.

  1. Content and limitation provisions , which regulate the allocation of property in an abstract and general manner, ie rights and obligations of the owner.
  2. Expropriation laws that specifically and individually withdraw property from a certain group of people (legal expropriation ).
  3. Authorization bases for the executive to withdraw specific individual property, whereby the official enforcement act can be the subject of primary law proceedings before the administrative courts (administrative expropriation).

The court then asks whether a previously existing legal position of the plaintiff has been violated, which could result in an expropriation law or administrative expropriation. This is denied, however, since the groundwater is not the property of the individual and the gravel mining carried out by the plaintiff cannot be separated from the damage to the groundwater as a legal position possibly worthy of protection. In the present case, the norms of the Water Management Act in question are content and limitation provisions, since the plaintiff's legal position was not specifically and individually impaired.

In the following (C III.) The court then examines the question of whether these content and limitation provisions are constitutional. First of all, it is stated that, due to its paramount importance for the common good, groundwater can be the subject of a legal regulation that subjects the individual use of individuals to a permit reservation and thus withdraws it from free availability. This also includes the extraction of gravel, which is currently colliding with the goal of extracting clean groundwater.

Finally, the proportionality of the Water Resources Act is checked. This is one of the decisive points of the resolution: In principle, no compensation has to be paid for a content and limitation determination, ie an abstract general regulation of property. With regard to the proportionality of the law, however, it may be necessary to issue transitional and hardship regulations for reasons of protection of legitimate expectations or to provide compensation for such cases. If a content and limitation provision does not meet the criterion of proportionality, there is no claim to compensation, but the law and the administrative acts based on it are unconstitutional. Consequently, a plaintiff must defend himself against the law or the measures enacted on the basis of the law. But he cannot simply “hold up his hand” and demand compensation because of the unconstitutionality of the law. Because Art 14 GG contains a grandfathering guarantee of property, not a property value guarantee.

Result

The Water Resources Act provided for transitional provisions of five years. In total, the plaintiff was able to continue to pay off for 17 years due to the suspension during the court proceedings. From the point of view of the Federal Constitutional Court, this satisfied the plaintiff's interests in the protection of existing rights, so that the Federal Court of Justice was subsequently able to reject the plaintiff's claim for compensation because of the constitutional conformity of the Water Resources Act and allow the state of North Rhine-Westphalia to revise it.

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